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NEGLIGENCE - Duty and standard of care

Tuesday, April 20, 2021 @ 6:23 AM  


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Appeal by the plaintiff from summary trial judgment dismissing his action for damages for personal injuries suffered because of a slip and fall accident. The appellant fell on black ice on a municipal sidewalk adjacent to the respondents’ residential property. He claimed damages for negligence against the respondents pursuant to the Occupiers Liability Act. The chambers judge found that the respondents did not owe the appellant a duty of care. She concluded that the appellant failed to establish that a reasonable person in the position of the respondents should have foreseen that by attempting to clear the sidewalk of snow and ice they might be materially contributing to the risk of danger. The appellant argued the judge asked the wrong question about foreseeability, resulting in a failure to find that injury to the appellant was not the reasonably foreseeable consequence of careless removal of snow and ice and erred in finding there were significant policy reasons that would militate against the recognition of a duty of care.

HELD: Appeal dismissed. A residential property owner did not owe a duty of care to pedestrians to clear adjacent sidewalks of snow and ice. The rejection of the duty of care alleged by the appellant was well established in the jurisprudence. No court had, however, undertaken a proper Anns/Cooper analysis at an appellate level. Trial and appellate courts either accepted or concluded that a property owner owed no duty of care at common law to pedestrians to clear adjacent sidewalks of snow and ice. In most of the cases, this conclusion was reached in circumstances where a municipal bylaw imposed an obligation on the property owner to remove snow or ice. For the purpose of the Anns/Cooper analysis in considering the duty of care asserted by the appellant, the appellant established reasonable foreseeability of harm. Absent special or unique circumstances, however, the relationship between a pedestrian and residential property owner was not sufficiently close and direct to make it just and fair to impose a duty of care.

Der v. Zhao, [2021] B.C.J. No. 332, British Columbia Court of Appeal, L.A. Fenlon, S.A. Griffin and G.B. Butler JJ.A., February 25, 2021. Digest No. TLD-April192021005